You are here: / Second Department

Tag Archive for: Second Department

, ,

Some of the Requirements for the Application of Attorney Work-Product and Trial-Preparation Privileges Explained

The Second Department explained some of the requirements for the application of attorney work-product and trial-preparation privileges:

Attorney work product under CPLR 3101(c), which is subject to an absolute privilege, is generally limited to materials prepared by an attorney, while acting as an attorney, which contain his or her legal analysis, conclusions, theory, or strategy … . “[T]he mere fact that a narrative witness statement is transcribed by an attorney is not sufficient to render the statement work product'” … . Contrary to the plaintiff’s contention, she did not meet her burden of establishing that the audio recording of an interview she conducted with the defendant Nicoletta Starks prior to the commencement of the instant action constituted attorney work product. Among other things, the plaintiff failed to show that the recording contained elements of opinion, analysis, theory, or strategy … .

The plaintiff argues, in the alternative, that the recording constitutes trial preparation material, which is subject to a conditional privilege under CPLR 3101(d)(2). However, the conclusory assertions set forth in her supporting affidavit are insufficient to meet her burden of establishing, with specificity, that the recording was prepared “exclusively in anticipation of litigation” … . Geffner v Mercy Med Ctr, 2015 NY Slip Op 01411, 2nd Dept 2-18-15

 

Criteria for Determining Motions to Dismiss Affirmative Defenses Explained

The Second Department explained the analytical criteria for determining motions to dismiss affirmative defenses:

Pursuant to CPLR 3211(b), “[a] party may move for judgment dismissing one or more defenses, on the ground that a defense is not stated or has no merit” (CPLR 3211[b]). When moving to dismiss an affirmative defense, the plaintiff bears the burden of demonstrating that the affirmative defense is “without merit as a matter of law” … . “In reviewing a motion to dismiss an affirmative defense, the court must liberally construe the pleadings in favor of the party asserting the defense and give that party the benefit of every reasonable inference” … . Bank of NY v Penalver, 2015 NY Slip Op 01407, 2nd Dept 2-18-15

 

,

Questions of Fact Raised Re: Whether Property Owner Liable for Work Done by Independent Contractor

The Second Department determined questions of fact existed about the liability of the property owner (Eastern) for work done by an independent contractor (Affraim).  Infant plaintiff was injured when he fell through a glass panel near the entrance of defendant’s building. The panel had been installed by an independent contractor.  The court explained the relevant analytical criteria:

“The general rule is that a party who retains an independent contractor . . . is not liable for the independent contractor’s negligent acts” … . One of the exceptions to this general rule is the “nondelegable duty exception, which is applicable where the party is under a duty to keep premises safe'” … . In such instances, the party “is vicariously liable for the fault of the independent contractor because a legal duty is imposed on it which cannot be delegated” … .

Here, the Eastern defendants demonstrated, prima facie, their entitlement to judgment as a matter of law by presenting evidence that the glass in the fixed panel was installed by an independent contractor in compliance with the applicable City and State building codes, and that the condition of the glass did not otherwise violate their duty to maintain the premises in a reasonably safe condition … . However, in opposition, the plaintiffs’ submissions, including expert affidavits, raised a triable issue of fact as to whether Affraim violated City and State building codes by failing to install safety glass in the panel … , and whether the Eastern defendants thereby breached a nondelegable duty to maintain the premises in a reasonably safe condition … . Horowitz v 763 E Assoc Inc, 2015 NY Slip Op 01417, 2nd Dept 2-18-15

 

Property Owner and Snow Removal Contractor Should Have Been Awarded Summary Judgment in Snow/Ice Slip and Fall Case—Analytical Criteria Explained

The Second Department determined the defendant property owner and defendant snow-removal contractor should have been awarded summary judgment in a slip and fall case.  The court outlined the criteria for both causes of action:

” A property owner will be held liable for a slip-and-fall accident involving snow and ice on its property only when it created the dangerous condition which caused the accident or had actual or constructive notice of its existence'” … . Thus, to establish its prima facie entitlement to judgment as a matter of law, a property owner defendant moving for summary judgment is required to establish, prima facie, that it neither created nor had actual or constructive notice of the dangerous condition that allegedly caused the plaintiff to fall … . Here, … [the property owner] … established its prima facie entitlement to judgment as a matter of law by submitting the transcripts of the deposition testimony of … a maintenance supervisor, and … the snow removal contractor, which established, prima facie, that [the property owner] did not have actual or constructive notice for a sufficient length of time to discover and remedy the ice condition which allegedly caused the plaintiff to fall… . * * *

“As a general rule, a limited contractual obligation to provide snow removal services does not render the contractor liable in tort for the personal injuries of third parties” … . “However, in Espinal v Melville Snow Contrs. (98 NY2d 136, 140), the Court of Appeals recognized that exceptions to this rule apply (1) where the contracting party, in failing to exercise reasonable care in the performance of his or her duties, launches a force or instrument of harm, (2) where the plaintiff detrimentally relies on the continued performance of the contracting party’s duties, or (3) where the contracting party has entirely displaced another party’s duty to maintain the subject premises safely” … .

Here, the plaintiff alleged [the snow-removal contractor] created the dangerous condition that caused her to slip and fall and, thus, launched a force or instrument of harm. In support of its motion, [the contractor] established, prima facie, that it did not create the allegedly dangerous condition which caused the plaintiff’s fall … . In opposition …, the plaintiff and [the property owner] failed to raise a triable issue of fact as to whether [the contractor] created or exacerbated the alleged hazardous condition … . The affidavit of the plaintiff’s expert as to the origin of the hazardous condition was speculative and conclusory and, thus, insufficient to defeat a motion for summary judgment … . Scott v Avalonbay Communities Inc, 2015 NY Slip Op -1438, 2nd Dept 2-18-15

 

Supreme Court Has Power to Issue Judicial Consent to Settlement Nunc Pro Tunc Where Workers’ Compensation Carrier Failed to Timely Seek Consent to a Third-Party Settlement from the Special Funds Conservation Commission

The Second Department determined Supreme Court erred when it held that it not have the power to provide judicial consent to a third-party settlement nunc pro tunc.  The Second Department explained the requirements for consent to a third-party settlement where the Special Fund will reimburse the carrier:

The Workers’ Compensation Board has previously determined that where, as here, a carrier failed to timely obtain consent of the Special Funds Conservation Committee to settlement of a personal injury action, the carrier may still obtain reimbursement from the Special Disability Fund, but only if it obtains a nunc pro tunc order from a court directing the Special Funds Conservation Committee to consent … . A request to compel nunc pro tunc consent to a settlement is addressed to the discretion of the Supreme Court … . In seeking a discretionary nunc pro tunc order from a court directing consent to settlement, a petitioner must first establish that (1) the delay in seeking judicial relief was not caused by the petitioner’s fault or neglect; (2) the amount of the settlement was reasonable; and (3) the party whose consent is sought was not prejudiced by the delay … .

Here, because the Supreme Court erroneously believed that it had no power to issue a nunc pro tunc order directing the Special Funds Conservation Committee to consent to settlement, it did not exercise its discretion. Accordingly, we remit the matter to the Supreme Court … . Matter of Empire State Transp Workers’ Compensation Trust v Special Funds Conservation Comm, 2015 NY Slip Op 01635, 2nd Dept 2-15-15

 

Criteria for Holding Property Owner Liable for an Assault on the Owner’s Property Succinctly Described

In affirming the dismissal of the complaint against the property owner which alleged liability for an assault which occurred during a party on the property, the Second Department explained the criteria for such liability.  Here there was no showing that the assault was foreseeable or that the property owner had the opportunity to control the conduct of the assailant:

“A property owner, or one in possession or control of property, has a duty to take reasonable measures to control the foreseeable conduct of third parties on the property to prevent them from intentionally harming or creating an unreasonable risk of harm to others” … . “This duty arises when there is an ability and opportunity to control such conduct, and an awareness of the need to do so” … . Morris v Chase Bank, 2015 NY Slip Op 01249, 2nd Dept 2-11-15

 

, ,

QUESTIONS OF FACT WHETHER DENTIST WAS AN EMPLOYEE OR AN INDEPENDENT CONTRACTOR AND WHETHER PLAINTIFF GAVE INFORMED CONSENT (THIRD DEPT).

After finding there was a question of fact whether the dentist (Weiss) who treated plaintiff was an employee of defendant-Toothsavers or an independent contractor, the Second Department determined there was a question of fact about whether plaintiff gave informed consent to the procedure:

“The Toothsavers defendants contend that because Weiss was an independent contractor, not an employee, they cannot be vicariously liable for Weiss’s malpractice. The general rule is that a party who retains an independent contractor, as distinguished from a mere employee or servant, is not liable for the independent contractor’s negligent acts” … . “The determination of whether an employer-employee relationship exists turns on whether the alleged employer exercises control over the results produced or, more importantly, the means used to achieve the results” … . …

“To establish a cause of action [to recover damages] for malpractice based on lack of informed consent, [a] plaintiff must prove (1) that the person providing the professional treatment failed to disclose alternatives thereto and failed to inform the patient of reasonably foreseeable risks associated with the treatment, and the alternatives, that a reasonable medical practitioner would have disclosed in the same circumstances, (2) that a reasonably prudent patient in the same position would not have undergone the treatment if he or she had been fully informed, and (3) that the lack of informed consent is a proximate cause of the injury” … . Chan v Toothsavers Dental Care Inc, 2015 NY Slip Op 01236, 2nd Dept 2-11-15

 

Principles of Owner/Contractor’s Liability Pursuant to Labor Law 241 (6) Succinctly Explained—Plaintiff’s Freedom from Comparative Fault Must Be Demonstrated—Absence of Actual or Constructive Notice on the Owner/Contractor’s Part Is Not a Defense

The Second Department determined summary judgment was properly granted to plaintiff on his Labor Law 241 (6) cause of action based upon the presence of snow and ice on the work site.  Plaintiff was directed to carry a piece of plywood over an area covered with ice and snow.  He fell and was injured.  The court explained the relevant analytical criteria:

As a predicate for liability pursuant to Labor Law § 241(6), the plaintiff alleged that he was injured as a result of a snow and ice condition that was permitted to remain on the worksite in violation of 12 NYCRR 23-1.7(d). That section of the Industrial Code unequivocally directs that ice and snow “shall be removed” from worksites so as “to provide safe footing” (12 NYCRR 23-1.7[d]…). The duty imposed is nondelegable … . Indeed, here, the Construction Management Agreement … provided that [the contractor] “shall remove snow or ice from the Project Site.” The plaintiff’s testimony at his deposition and his averments in his affidavit in support of his motion established that he slipped and fell as a result of the snow and ice at the location where he was performing the tasks assigned to him. The plaintiff also demonstrated his freedom from comparative fault, as he was following his employer’s directives, using the equipment provided, and wearing proper shoes as required by his employer. The plaintiff thereby demonstrated his prima facie entitlement to judgment as a matter of law on the Labor Law § 241(6) cause of action … . … Moreover, “[s]ince an owner or general contractor’s vicarious liability under section 241 (6) is not dependent on its personal capability to prevent or cure a dangerous condition, the absence of actual or constructive notice sufficient to prevent or cure must also be irrelevant to the imposition of Labor Law § 241 (6) liability” … . Reynoso v Bovis Lend Lease LMB Inc, 2015 NY Slip Op 01256, 2nd Dept 2-11-15

 

Analytical Criteria for Confirmation of an Arbitration Award Described

The Second Department explained the analytical criteria for confirmation of an arbitration award.  The court noted that an arbitrator does not have the power to award punitive damages:

“The court shall confirm an award upon application of a party made within one year after its delivery to him [or her], unless the award is vacated or modified upon a ground specified in section 7511” (CPLR 7510). “An arbitration award is indefinite or nonfinal for purposes of CPLR 7511 and subject to vacatur only if it leaves the parties unable to determine their rights and obligations, if it does not resolve the controversy submitted or if it creates a new controversy'” … . “An award is final and definite if the computation of the award is so clear and specific that the determination of the amounts owing is merely an accounting calculation” … . Matter of Olidort v Pewzner, 2015 NY Slip Op 01278, 2nd Dept 2-11-15

 

,

One- and Two- Family Homeowners’ Exemption Precluded Labor Law 240 (1) and 246 (1) Causes of Action/Defendant-Owner’s Failure to Demonstrate He Did Not Create or Have Notice of the Alleged Dangerous Condition Precluded Summary Judgment on the Labor Law 200 and Common-Law Negligence Causes of Action

After finding that the Labor Law 240(1) and 246(1) causes of action were properly dismissed (one- and two-family homeowner exemption), the Second Department determined the summary judgment should not have been granted to the homeowner on the Labor Law 200 and common-law negligence causes of action.  The motion for summary judgment failed to address the allegation the owner created or had notice of the dangerous condition:

The plaintiff alleged that his injuries were caused both by a dangerous condition on the premises and the “means and methods” of construction. Accordingly, in order to be entitled to judgment as a matter of law dismissing those causes of action, Elias was required to address both theories … . Since Elias failed to establish, prima facie, that he neither created nor had actual or constructive notice of a dangerous condition on the premises, that branch of his motion which was for summary judgment dismissing the causes of action alleging common-law negligence and violation of Labor Law § 200 insofar as asserted against him should have been denied, without regard to the sufficiency of the plaintiff’s papers submitted in opposition… . Pineda v Elias, 2015 NY Slip Op 01254, 2nd Dept 2-11-15

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy